patentology

07 October 2010

The most read article we have yet published on the Patentology blog was Why has Oracle Sued Google? which discussed the background to Oracle's complaint of patent and copyright infringement against Google Inc., in relation to the Android software for mobile devices.

Google has now filed its reply to Oracle's complaint (read the reply here), in which it has denied that the Android software violates Java patents and copyrights. In its own version of the background to the suit, Google has also accused Oracle of hypocrisy, saying that back in 2007 "Sun came under significant criticism from members of the open source community, including Oracle Corp., for its refusal to fully open source Java."

MOTION TO DISMISS COPYRIGHT CLAIMS

Much of the commentary and news coverage we have read (eg in The Age, and at SDTimes, amongst others) has focused on Google's motion to dismiss Oracle's copyright infringement complaint, on the basis that it includes “impermissibly vague and broad allegations of copyright infringement” and does not specifically identify any allegedly infringing works of Google, how Google allegedly infringed Oracle’s rights or how Oracle believes its claim of vicarious liability for copyright infringement arises. As we noted when discussing the case previously, Google's position is that Android was developed independently, without use of the Sun/Oracle Java source code, and therefore there was no copying and thus no copyright infringement. There is an onus on Oracle to allege facts that describe infringing acts in sufficient detail to establish that there is a case to be answered. Google contends that Oracle's copyright infringement complaint does not include any factual allegation regarding how the infringement occurred, and thus should be dismissed. There seems to be some merit in this contention. (Read the motion to dismiss here.)

GOOGLE NOT ASKING FOR THE WHOLE SUIT TO BE TOSSED

Reading some of the news reports, you might think that Google is asking the court to toss out the entire suit. This is not the case. Even if the court grants Google's motion to dismiss the copyright claims, the patent infringement claims will still remain to be tried. You might also think, from some reports, that Google is seeking to have Oracle's complaints dismissed on the basis that Java is "open source", and that it is therefore not possible to infringe any associated rights. This is also not the case. While there is some discussion of the history of Java, Android, the JVM and the Dalvik VM, in the factual background provided in Google's answer, none of this actually provides the legal basis for Google's defense or the motion to dismiss the copyright claims.

REPLY TO PATENT INFRINGEMENT COMPLAINT

With regard to the alleged patent infringement, Google's reply states only that Google denies infringement of any of the seven asserted patents, and further alleges that all of the patents are invalid and/or unenforceable on all of the usual grounds available under the law. This is not a request to dismiss the claims, but is a statement of what Google's position is, and will be at trial.

In fact, Google expressly admits, in relation to each of the patent infringement claims, that "an actual case or controversy exists between Google and Oracle as to whether the ... patent is infringed by Google", and that "a judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the ... patent."

CONCLUSION

It will be interesting to see how Oracle responds to Google's motion to dismiss the copyright complaint.

However, barring a settlement in the meantime it looks like the patent infringement case is going to court.